Jacoby v. Mack et al

Filing
75

ORDER granting Motion for Summary Judgment (docs 55, 68, 69, 70) and denying 74 Motion for Extension of Time as set out in order. Signed by Judge Kristi K. DuBose on 3/21/2016. (copy mailed to plaintiff) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENT JACOBY (#291560)
Plaintiff,
*
*
*
*
*
*
*
vs.
SHERIFF HUEY MACK, et al.
Defendants.
CIVIL ACTION:13-00070-KD-B
ORDER
Plaintiff, an Alabama prison inmate proceeding pro se and
in forma pauperis filed a complaint seeking relief under 42
U.S.C.
§ 1983.
This
action
is
now
before
the
court
on
Defendants’ Motions for Summary Judgment. (Docs. 55, 68, 69,
70).
After
careful
consideration
of
the
motions,
and
the
documents filed in support of and in opposition to the motions,
and
for
the
reasons
stated
below,
Defendants’
Motions
for
Summary Judgment are granted and Plaintiff’s action is dismissed
with prejudice.
I.
As
BACKGROUND
a
Plaintiff
preliminary
Jacoby
is
matter,
a
the
frequent
undersigned
litigator.
observes
He
filed
that
four
complaints, including the instant one, while incarcerated as a
pretrial detainee at the Baldwin County Jail 1 . See Jacoby v.
1
A PACER (“Public Access to the Court Electronic Record”) search
reveals that in addition to the complaints that he has filed in this
district, Jacoby has also filed at least seven other § 1983 actions.
See Jacoby v. Conway, CA 10-00920-HBS(W.D.N.Y June 2, 2011), Jacoby v.
County of Oneida, New York, 05-1254 2009 U.S. Dist. LEXIS 83235
Baldwin
County
Jail,
Civ.
No.
12-00197-WS-M
(hereinafter
referenced as “Jacoby I”), 2013 WL 2285108, 2013 U.S. Dist.
LEXIS 72212 (S.D. Ala. May 7, 2013), Jacoby v. Mack, Civ. No.
12-00366-CG-C,
2014
WL
2435655,
2014
U.S.
Dist.
LEXIS
74768
(S.D. Ala. Mar. 14, 2014) (hereinafter referenced as “Jacoby
II”), Jacoby v. Baldwin County, Civ. No. 12-00640-CG-N, 2014 WL
2641834, 2014 U.S. Dist. LEXIS 81477 (S.D. Ala. Mar. 18, 2014)
(hereinafter referenced as “Jacoby III”). Some of the claims
that Jacoby seeks to raise in this action have already been
considered and rejected in the earlier filed actions 2 .
In fact,
all of Jacoby’s claims in each of those actions were dismissed
after it was determined that there were no genuine issues of
material fact in dispute, and that the defendants were entitled
to judgment as a matter of law. Id.
From its review of the record, the Court summarizes the
material factual allegations in this case in the light most
(N.D.N.Y. Sept.11, 2009),Jacoby v. Moscicki, 07–00342–HBS, 2008 U.S.
Dist. LEXIS 124827 (W.D.N.Y. Sept. 12, 2008), Jacoby v. Phelix, 0700872-(DNH/ATB) 2010 U.S. Dist. LEXIS 44222 (N.D.N.Y Mar. 31, 2010),
Jacoby v. Sears, CA 07–00872–ATB (N.D.N.Y. Mar. 28, 2011), Jacoby v.
Buncombe County Drug Treatment Program, 09-304–03–MU, 2009 U.S. Dist.
LEXIS 80419 (W.D.N.C. Aug. 13, 2009), and Jacoby v. Fischer, 10–00920–
HBS (W.D.N.Y. Apr. 10, 2013).
2
The Court takes judicial notice of its records. See United
States v. Glover, 179 F.3d 1300, 1302 n.5 (11th Cir. 1999) ("A court
may take judicial notice of its own records and the records of
inferior courts.").
2
favorable to Jacoby. 3 At all times relevant to his complaint in
this
action,
Jacoby
was
incarcerated
at
the
Baldwin
County
Correctional Facility as a pre-trial detainee. (Doc. 1 at 12).
Jacoby
arrived
transferred
at
from
the
the
facility
facility,
in
and
October
into
the
20ll,
custody
and
was
of
the
Alabama Department of Corrections upon his convictions for Third
Degree Burglary in October 2013. (Jacoby I, Doc. 98 at 2);(Doc.
39 at 4); www.doc.state.us/inmateHistoryaspxary (last visited on
March 14, 2016.).
On January 6, 2013, prison officials received a tip
that there was tobacco in the block occupied by Jacoby and other
inmates.
(Doc. 32-3 at 3-4).
staff. (Id.).
This prompted a block search by
During the search, tobacco was found taped to a
string and hanging down a doorframe, concealed from view. (Id.)
This tobacco was accessible to Jacoby and other inmates. (Id.).
Sgt. Lovett ordered all inmates who could be implicated in this
incident,
including
Jacoby,
to
be
taken
to
administrative
segregation while the investigation was completed. (Id.). The
3
For summary judgment purposes, the Court’s analysis must begin
with a description of the facts in the light most favorable to Jacoby,
who is the non-moving party. See Skritch v. Thornton, 280 F.3d 1295,
1299 (11th Cir. 2002). “[T]he ‘facts’ as accepted at the summary
judgment stage of the proceedings, may not be the ‘actual’ facts of
the case.” Priester v. City of Rivera Beach, 208 F.3d 919, 925 n.3
(11th Cir. 2000).
3
general policy of the facility mandates that any inmate who
might
be
implicated
in
an
offense
is
to
be
placed
in
administrative segregation for the safety and security of the
facility during an ongoing investigation. (Id.).
The
informed
following
that
day,
Jacoby
January
was
7,
being
2013,
disruptive
Sgt.
in
Lovett
his
cell
was
in
administrative segregation by repeatedly kicking the cell door,
and was refusing to follow instructions to stop. (Docs. 32-3 at
4; Doc. 32-7 at 10).
At the time, Jacoby had been at the
facility for nearly a year and a half, and during this period,
he had been found with contraband on multiple occasions, he had
numerous confrontations with prison staff, and he had attempted
to harm himself with a razor on at least two occasions. (Jacoby
I, Doc. 64 at 3-5; Jacoby II, Doc. 71 at 2-3, Jacoby III, Doc.
74 at 35).
Lovett
sent
Fully aware of Jacoby’s disruptive history, Sgt.
officers
to
Jacoby’s
cell
and
instructed
the
Corporal on the shift to use pepper spray if Jacoby continued to
be combative and refused to follow instructions. (Doc. 32-3 at
4).
A video of the incident shows a gathering of five or six
officers walking and discussing “handling business”. (Doc. 328.)
As officers approach and unlock the cell door, several
4
inmates can be seen exiting the cell, and one inmate is seen
couched on his knees on the floor.
Officers yell for the inmate
to get down, and then two officers move in, with one quickly
spraying
the
inmate,
who
is
identified
direction of the back of his head.
and
the
officers
place
as
Jacoby,
in
the
Jacoby is taken to the floor
Jacoby’s
hands
behind
his
back,
and
handcuff him. (Id.). Jacoby is then placed on his feet, and
officers proceed to escort him down a hallway.
They reach a
closet sink, bend him over, and rinse his face and the back of
his head with water.
then
placed
encounter,
in
Jacoby
a
Jacoby, who is clad is short pants, is
restraint
is
yelling
chair.
At
about
the
points
use
of
during
the
spray
and
threatening to sue the officers involved. The entire video lasts
approximately six minutes.(Id.)
On January 27, 2013, a routine search for contraband was
performed. (Doc. 32-3 at 5; Doc. 32-7). A 1.5 pound block of
crushed soap was found in Jacoby’s possession in violation of
contraband policy. (Doc. 32-3 at 5; Doc. 32-6; Doc. 32-7). The
soap was confiscated and Jacoby was charged with violating the
prison’s weapon’s policy because the crushed soap could easily
be used as a weapon, to hide other contraband such as razors,
and to attempt to vandalize property. (Id.). On February 4,
5
2013, a disciplinary hearing was conducted, Jacoby was found
guilty, and he was confined to segregation for thirty days.
(Doc. 1 at 10; Doc. 38-1).
In the instant petition, which was filed on February 14,
2014 4 , Jacoby asserts claims against Baldwin County Sheriff Huey
“Hoss” Mack, Captain Jimmie Bennett, Sgt. Janie Lovett, Cpl.
ReNisha
Spencer,
Officer
incidents
described
subjected
to
McCants
above.
inhumane
Jacoby
conditions
and
Cpl.
complains
in
Winky
for
that
segregation
the
he
was
because
segregation is overcrowded such that three inmates were forced
to sleep in cells designed for one to two persons, and he was
“forced to sleep with urine splattering on him, on his sheets
with pubic hairs, body hairs, and dirt all over him for 3 days
because he was forced to sleep on the floor”. (Doc. 1 at 5).
Jacoby also contends he was “denied outside recreation for
3 days, periodicals to read, and the opportunity to purchase
hygiene products” while in segregation due to BCSCC’s policy “to
not allow inmates to go to recreation, having reading materials,
and
purchase
grooming
products
in
4
segregation.”
(Id.).
He
Under the mailbox rule, absent contrary evidence, a prisoner’s
complaint is deemed filed on the date it is delivered to prison
officials for mailing. See Houston v. Lack, 487 U.S. 266, 271-72, 108
S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Adams v. United States, 173
F.3d 1399, 1340-41 (11th Cir. 1999); Washington v. United States, 243
F.3d 1299, 1301 (11th Cir. 2001); see also (Doc. 1 at 7).
6
further
avers
contraband
that
of
he
another
was
placed
inmate,
in
and
segregation
that
he
is
a
due
to
the
“serious
to
severe mentally ill inmate and should not be housed under these
extreme conditions.” (Doc. 1 at 6). Jacoby also contends that
during the January 7, 2013 incident, he was sprayed with pepper
spray for no reason while he laid on the ground without a shirt,
shoes, or socks, and that he was placed in a restraint chair and
left for “8 ½ hours strapped down screaming in agony for water
and out of pain” which also caused him to “urinate [] on himself
because he was not allowed to go to the bathroom.” (Doc. 1 at 68). He further claims that he was denied due process because he
was not provided adequate notice of the February 4 disciplinary
hearing, and the hearing was not recorded. (Doc. 1 at 10; Doc.
38-1).
According to Jacoby, each of these incidents reflects the
policy
and
Bennett
in
customs
him
lawsuits.
Defendants
supervising
Additionally,
against
of
Jacoby
due
(Doc.
to
1
at
the
claims
his
9).
Sheriff
BCSCC
that
Mack
facility.
Sgt.
(Doc.
Lovett
continued
filing
Jacoby
requested,
and
is
of
Captain
1
at
retaliating
grievances
and
9).
was
and
granted
permission to file an amended complaint on December 5, 2014 in
order
to
name
Defendants
McCants
7
and
Winky,
who
had
been
previously identified in the complaint as John Doe #1 and John
Doe #2. (Docs 45, 49).
Defendants
Spencer,
Bennett,
Mack,
and
Lovett
filed
an
Answer and Special Report disputing Jacoby’s claims. (Docs. 32,
33).
Defendants contend that Jacoby’s claims are barred by the
doctrines of collateral estoppel and res judicata, as well as by
the Prison Litigation Reform Act because he has not suffered a
physical injury as a result of the allegations in his amended
complaint.
They also argue that any claims against Defendants
in their official capacity should fail due to Eleventh Amendment
immunity,
and
that
claims
individual
capacities
brought
should
also
against
fail
them
because
in
their
Jacoby
cannot
show a violation of a clearly established right.5 (Doc. 32 at 1324).
According
force,
to
inadequate
Defendants,
Jacoby’s
conditions
of
claims
confinement,
of
due
excessive
process
violation, retaliation, and policy and procedure claims fail on
their merits6. (Id. at 24-37).
5
Defendants also asserted that Jacoby is barred from bringing
this lawsuit because he failed to disclose prior lawsuits that showed
that he had incurred three strikes prior to filing this claim. (Doc.
32 at 10). This argument was considered, and ultimately rejected by
the court. (Doc. 49).
6
On February 10, 2015, Defendants filed a Notice of Relevant
Precedent (Doc. 40) advising the Court of an opinion by the Eleventh
Circuit affirming the dismissal of Jacoby’s claims in "Jacoby I",
8
The
Court
Defendants
entered
Spencer,
an
order
Bennett,
notifying
Mack,
and
the
parties
Lovett’s
Answer
that
and
Special Report were being converted into a motion or summary
judgment, and giving the parties an opportunity to file briefs
in
support
conversion
or
opposition.
order
was
(Doc.
entered,
56).
Jacoby
However,
filed
a
before
the
response
in
opposition to Defendants’ summary judgment motion. (Doc. 39).
The two later added Defendants, Winky and McCants, filed their
Special Report and Answer on February 8, 2016. (Docs. 68, 69).
The Court entered an order notifying the parties that Winky and
McCants’ Answer and Special Report were being converted into a
motion or summary judgment, and giving them an opportunity to
file briefs in support or opposition. (Doc. 70).
The motions are now ripe for consideration7.
II.
STANDARD OF REVIEW
Jacoby v. Baldwin County Jail, Civ. No. 12-197-WS-M, 2013 WL 2285108,
2013 U.S. Dist. LEXIS 72212 (S.D. Ala. May 7, 2013).
7
More than two weeks after the deadline for filing opposition
briefs, Jacoby, on March 14, 2016, filed a motion for an extension of
time contending that he had been raped and kidnapped; thus, was unable
to timely file his response. (Doc. 74).
However, the undersigned
finds that Jacoby’s request is due to be denied. The docket reflects
that mere days earlier, on March 9, 2016, Jacoby filed a document
informing the Court that he wanted to proceed with this case, that he
was not going anywhere, and that he wanted his day in court. At that
point, Jacoby did not indicate a desire to file a response, request an
extension of time to file to file a response, or apprise the Court of
any problems encountered in filing a response.
In view of such,
Jacoby’s extension request is denied.
9
Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91
L. Ed. 2d 265 (1986); Garczynski v. Bradshaw, 573 F.3d 1158,
1165 (11th Cir. 2009) (“[S]ummary judgment is appropriate even if
‘some alleged factual dispute’ between the parties remains, so
long as there is ‘no genuine issue of material fact.’”(emphasis
in original)).
The party asking for summary judgment “always bears
the initial responsibility of informing the district
court of the basis for its motion, and identifying
those portions of the ‘pleadings, depositions, answers
to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material
fact.” Id. at 323. The movant can meet this burden by
presenting evidence showing there is no dispute of
material fact, or by showing, or pointing out to, the
district court that the nonmoving party has failed to
present evidence in support of some element of its
case on which it bears the ultimate burden of proof.
Id. at 322–24.
Once the moving party has met its burden, Rule 56(e)
“requires the nonmoving party to go beyond the
pleadings and by [its] own affidavits, or by the
‘depositions,
answers
to
interrogatories,
and
admissions on file,’ designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324.
To avoid summary judgment, the nonmoving party “must
10
do more than show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
On the
other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn
in its favor. See Anderson, 477 U.S. at 255.
ThyssenKrupp
Steel
USA,
LLC
v.
United
Forming,
Inc.,
926
F.Supp.2d 1286, 1289-90 (S.D. Ala. Jan. 29, 2013) (citations
omitted).
As
noted
supra,
the
Court,
in
considering
whether
Defendants are entitled to summary judgment in this case, views
the facts in the light most favorable to Plaintiff. Comer v.
City of Palm Bay, Florida, 265 F.3d 1186, 1192 (llth Cir. 2001)
(“We view the evidence and all factual inferences raised by it
in the light most favorable to the non-moving party, and resolve
all reasonable doubts about the facts in favor of the non-moving
party.”).
The requirement to view the facts in the nonmoving
party’s favor extends only to “genuine” disputes over material
facts.
A genuine dispute requires more than “some metaphysical
doubt as to material facts.” Garczynski v. Bradshaw, 573 F.3d
1158, 1165 (11th Cir. 2009) (internal citations omitted).
“mere
scintilla”
of
evidence
is
insufficient;
the
A
nonmoving
party must produce substantial evidence in order to defeat a
motion for summary judgment. Id.
11
Moreover,
where
“opposing
parties
tell
two
different
stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007); see also
Logan v. Smith, 439 F.App’x 798, 800 (llth Cir. Aug. 29, 2011)
(“In cases where opposing parties tell different versions of the
same
events
one
of
which
is
blatantly
contradicted
by
the
record—such that no reasonable jury could believe it—a court
should
not
adopt
the
contradicted
allegations.”
(citations
omitted) (unpublished)).8
Additionally,
the
undersigned
recognizes
Court is required to liberally construe a
that
while
the
pro se litigant’s
pleadings, the Court does not have “license to serve as de facto
counsel for a party . . . or to rewrite an otherwise deficient
pleading in order to sustain an action.” GJR Invs., Inc. v.
Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)
(citations omitted), overruled on other grounds by Randall v.
Scott, 610 F.3d 701 (11th Cir. 2010); see also Giles v. Wal-Mart
Distrib. Ctr., 359 F.App’x 91, 93 (11th Cir. 2009) (internal
8
“Unpublished opinions are not considered binding precedent, but
may be cited as persuasive authority.” 11th Cir. R. 36-2.
12
citations and quotations omitted) (“Although pro se pleadings
are
held
to
lawyers
a
and
less
thus
strict
are
standard
construed
than
pleadings
liberally,
filed
this
by
liberal
construction does not give a court license to serve as de facto
counsel
for
a
party,
or
to
rewrite
an
otherwise
deficient
pleading in order to sustain an action.”).
Based upon a liberal construction of Jacoby’s complaint,
the
Court
construes
his
factual
allegations
as
asserting
an
excessive force claim based upon his altercation with Defendants
in January 2013, a claim that the conditions of his confinement
are
constitutionally
inadequate,
claims
that
his
due
process
rights were violated by the searches and disciplinary procedures
he faced, claims of retaliation by prison officials, and claims
that
the
Defendants
acted
with
deliberate
indifference
in
setting policies and procedures. The undersigned will discuss
each of these claims in turn individually below.
II.
DISCUSSION
A. Qualified Immunity
1. Official Capacity
It is well-established that, “suits against an official in
his or her official capacity are suits against the entity the
individual represents.” Parker v. Williams, 862 F.2d 1471, 1476
13
n.4 (11th Cir. 1989), overruled on other grounds in Turquitt v.
Jefferson County, 137 F.3d 1285, (11th Cir. 1998); see Monell v
Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 56
L.
Ed.
2d
611
(1978)(“[O]fficial
capacity
suits
generally
represent only another way of pleading an action against an
entity of which an officer is an agent.”); Farred v. Hicks, 915
F.2d 1530, 1532 (11th Cir. 1990). For the purposes of qualified
immunity,
it
is
not
disputed
that
Defendants
are
state
officials.
Thus, to the extent that Jacoby’s claims are against the
Defendants
in
their
official
capacities,
his
claims
are
effectively claims against the State of Alabama. The Supreme
Court has held that states and state officials are not “persons”
subject to liability pursuant to 42 U.S.C. § 1983. See Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105
L. Ed. 2d 45 (1989). Further, pursuant to the Eleventh Amendment
of the United States Constitution, a state’s own citizens may
not sue unless the state consents to suit or Congress acts to
abrogate immunity. See Carr v. Florence, 916 F.2d 1521, 1524-25
(11th Cir. 1990). There is nothing before the Court that suggests
that the State of Alabama has consented to the suit or that
Congress has acted to abrogate immunity. Accordingly, Defendants
14
have absolute immunity against the claims asserted against them
in their official capacities.
2. Individual Capacity
"Qualified
government
immunity
officials
sued
offers
in
complete
their
protection
individual
for
capacities
if
their conduct 'does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738, 73 L. Ed. 2d 396 (1982)). A law enforcement officer
is entitled to qualified immunity if "an objectively reasonable
officer in the same situation could have believed that the force
used
was not excessive." Id. Qualified immunity from suit is
intended
to
"allow
government
officials
to
carry
out
their
discretionary duties without the fear of personal liability or
harassing litigation, protecting from suit all but the plainly
incompetent or one who is knowingly violating the federal law."
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal
quotation marks and citations omitted).
Courts utilize a two-part framework to evaluate individual
capacity qualified immunity claims.
immunity
analysis
is
whether
the
15
One inquiry in a qualified
plaintiff's
allegations,
if
true, establish a constitutional violation. Hope v. Pelzer, 536
U.S. 730, 736, 122 S. Ct. 2508, 2513, 153 L. Ed. 2d 666 (2002)
(citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
2156, 150 L. Ed. 2d 272 (2001)). If the facts, construed in the
light
most
constitutional
favorable
right
to
has
the
been
plaintiff,
violated,
show
a
inquiry
another
that
is
whether the right violated was "clearly established." Saucier v.
Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 150 L. Ed. 2d 272
(2001). The Eleventh Circuit has observed that in determining
whether a right was “clearly established”, the courts do not
require a case directly on point; however, “existing precedent
must have placed the statutory or constitutional question beyond
debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct.
2074, 2083, 179 L. Ed. 2d 1149 (2011) (internal quotation marks
omitted). Id., at 741, 131 S. Ct. at 2083; see also Wilson v.
Blankenship,
citation
and
163
F.3d
1284,
omitted)(emphasis
abstractions
do
not
in
1288
(11th
Cir.
1998)(internal
original)(“General
qualify
for
bright
propositions
line,
clearly
established law. For qualified immunity to be surrendered, preexisting
law
must
dictate,
that
is,
truly
compel
(not
just
suggest or allow or raise a question about), the conclusion for
every
like-situated,
reasonable
government
16
agent
that
what
defendant is doing violates federal law in the circumstances.”).
Both
elements
of
official
to
lose
analysis
may
the
be
two
part
qualified
done
in
test
must
immunity,
whatever
be
and
order
present
this
is
for
an
two-pronged
deemed
most
appropriate for the case. Pearson v. Callahan, 555 U.S. 223, 129
S. Ct. 808, 821, 172 L. Ed. 2d 565 (2009).
Before applying the two-part test, the initial inquiry in a
qualified immunity case is whether the public official proves
"that
he
was
acting
within
the
scope
of
his
discretionary
authority when the allegedly wrongful acts occurred." Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation
marks
omitted).
In
this
case,
no
one
has
disputed
that
Defendants were acting within the scope of their discretionary
authority
as
jail
officials
at
the
time
of
the
incidents
asserted in the complaint. Thus, the inquiry before the Court is
whether qualified immunity is available as a defense to Jacoby’s
individual capacity claims.
For the reasons detailed below, the Court finds that no
genuine issue of material fact exists in support of Jacoby’s
claims
of
alleged
constitutional
violations,
and
that
the
Defendants are entitled to summary judgment on all claims as a
matter of law.
17
B. Excessive Force Claim
As
noted
supra,
Jacoby
contends
that
Defendants
used
excessive force when he was pepper sprayed on January 6, 2013,
and placed in a restraint chair for 8 and one-half hours without
being
properly
decontaminated.
The
analysis
of
an
excessive
force claim brought under § 1983 begins with determining the
specific
constitutional
right
allegedly
infringed
by
the
challenged application of force. Graham v. Conner, 490 U.S. 386,
394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The Fourteenth
Amendment prohibits the use of excessive force against pretrial
detainees, such as Jacoby 9 . See, e.g., Cottrell v. Caldwell, 85
F.3d 1480, 1490 (11th Cir. 1996) ("Claims involving mistreatment
of arrestees or pretrial detainees in custody are governed by
the Fourteenth Amendment's Due Process Clause[.]"). "In order to
determine whether the amount of force used by an . . . officer
was proper, a court must ask whether a reasonable officer would
believe that this level of force is necessary in the situation
at hand." Lee, 284 F.3d at 1197; see also Graham v. Connor, 490
U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
Thus,
the
Court
evaluates
pretrial
9
detainee
excessive
force
As noted, the record reflects that at the time of the
January/February 2013 incidents alleged in the Jacoby’s complaint, he
was a pretrial detainee at the Baldwin county jail.
18
claims under an objective reasonableness standard. Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473-74, 192 L. Ed. 2d 416 (2015);
see also Mobley v. Palm Beach Cty. Sheriff Dep't, 783 F.3d 1347,
1353
(11th
Cir.
reasonableness
2015)
standard
(explaining
"asks
whether
that
the
the
force
objective
applied
is
objectively reasonable in light of the facts confronting the
officer,
a
determination
we
make
from
the
perspective
of
a
reasonable officer on the scene and not with the 20/20 vision of
hindsight.").
In examining excessive force claims, courts should keep in
mind that "[o]fficers facing disturbances 'are often forced to
make
split-second
judgments—in
circumstances
that
are
tense,
uncertain, and rapidly evolving.'" Kingsley, 135 S. Ct. at 2474
(quoting Graham, 490 U.S. at 397). Furthermore, "a court must
take account of the legitimate interests in managing a jail,
acknowledging as part of the objective reasonableness analysis
that
deference
to
policies
and
practices
needed
to
maintain
order and institutional security is appropriate." Id.; Bell v.
Wolfish, 441 U.S. at 547 ("Prison officials must be free to take
appropriate
action
to
corrections personnel.");
insure
the
safety
of
inmates
and
Wilson v. Blankenship, 163 F.3d 1284,
1295 (11th Cir. 1998)("The courts will not normally "second-
19
guess prison officials on matters that they are better equipped
to handle under the exigencies of an internal disturbance.””).
Thus, an objective determination of unreasonableness must
be made from the perspective of a reasonable officer on the
scene,
and
includes
(citing
Graham,
account
for
government’s]
490
the
what
the
U.S.
officer
at
296).
“legitimate
need
to
knew
This
interests
manage
the
at
the
time.
determination
[stemming
facility
Id.
must
the
which
in
from
the
individual detained”, and must defer to “policies and practices
that
in
“preserve
th[e]
judgment”
internal
of
order
jail
and
officials
discipline
are
necessary
and
to
to
maintain
institutional security”. Id. at 2468, 2471-2473 (citing Bell v.
Wolfish, 441 U.S. 520, 540, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447).
The Court in Kingsley cited several factors that could be
helpful in this analysis. These include the relationship between
the need for force and the amount of force used, the extent of
the plaintiff’s injury, any effort made by the officer to limit
the amount of force used, the severity of the security problem
at issue, the threat reasonably perceived by the officer, and
whether the plaintiff was actively resisting. Kingsley, 576 S.Ct
at
2473.
These
factors
are
not
20
meant
to
be
exhaustive
or
exclusive,
only
an
illustration
of
the
types
of
objective
circumstances that could be potentially relevant. Id.
The use of chemical agents, mace, or the pepper spray has
been found not to violate the Eighth Amendment when its use is
reasonable
and
necessary
to
prevent
riots
and
to
subdue
recalcitrant prisoners. Williams v. Benjamin, 77 F.3d 756, 76263 (4th Cir. 1996) (finding that the spraying of mace in the
face and chest of a recalcitrant prisoner while in his cell did
not constitute cruel and unusual punishment because he had been
throwing water and refused to remove his arm from a food service
slot); Soto v. Dickey, 744 F.2d 1260, 1270-71 (7th Cir. 1984)
(upholding
the
use
of
mace
in
a
prisoner's
cell
because
he
refused to be handcuffed), cert. denied, 470 U.S. 1085, 105 S.
Ct. 1846, 85 L. Ed. 2d 144 (1985); Clemmons v. Greggs, 509 F.2d
1338,
1340
(5th
Cir.
1975)
(ruling
that
there
was
no
constitutional violation when mace was used during a disturbance
because there was no intent to punish), cert. denied, 423 U.S.
946, 96 S. Ct. 360, 46 L. Ed. 2d 280 (1975); Geas v. DuBois, 868
F. Supp. 19, 24 (D. Mass. 1994) (ruling that "'the use of nondangerous quantities of [a chemical agent] in order to prevent a
perceived
future
danger
does
not'
generally
overstep
constitutional parameters."); Blair-El v. Tinsman, 666 F. Supp.
21
1218,
1222
(S.D.
Ill.
1987)
(finding
that
officers
acted
reasonably when they sprayed a chemical spray into an inmate's
cell to quell a disturbance); cf. Ort v. White, 813 F.2d 318,
324 (11th Cir. 1987) (relying on the decision in Soto v. Dickey
in which chemical agents were used, to determine that the denial
of
water
was
an
immediate,
coercive
measure,
and
not
punishment). It is only a "violation of the Eighth Amendment
[Fourteenth Amendment] for prison officials to use mace or other
chemical agents in quantities greater than necessary or for the
sole purpose of punishment or the infliction of pain." Soto, 744
F.2d at 1270. "A limited application of mace may be 'much more
humane and effective than a flesh to flesh confrontation with an
inmate.'" Williams v. Benjamin, 77 F.3d 756, 763 (quoting Soto,
744 F.2d at 1262).
In
the
case
at
hand,
the
evidence
is
undisputed
that
officers used pepper spray on January 7, 2013. The undersigned
observes however that the events of January 7, 2013 cannot be
viewed in isolation.
Indeed, Defendants assert and Jacoby does
not dispute that prior to this incident, he had a number of
physical
encounters
with
staff
at
the
Baldwin
County
jail.
Indeed, in Jacoby v. Baldwin County, 596 Fed. Appx. 757 (llth
Cir. 2014), the Eleventh Circuit addressed Jacoby’s claim in
22
Jacoby
I
that
the
district
court
improperly
granted
summary
judgment on his claim that a Baldwin County jail official used
excessive force against him on December 22, 2011, when officers
used pepper spray to subdue him after he cut himself with a
razor blade even though he was lying on his cell floor bleeding
from his wounds. Jacoby also claimed that the officers failed to
decontaminate him for eight hours. In affirming the district
court’s grant of summary judgment in favor of the officers, the
court found that the officers were justified in their use of
pepper spray as Jacoby had previously “threatened violence in
addition to self harm,” and that the officers reasonably could
have believed Jacoby might use the razor in defense when the
officers approached him or that he might harm himself further.
Id. at 766.
Also, in Jacoby II, Jacoby asserted excessive force claims
against jail officials after he was sprayed with pepper spray on
April 13, 2012 and placed in a restraint chair for eight and
one-half hours.
In denying Jacoby’s excessive force claim, the
court found that just prior to the incident, Jacoby was upset,
yelling,
screaming,
and
demanding
an
officer’s
help
after
realizing some of his personal items had been removed from his
possession for the duration of his housing in segregation, and
23
that the defendant had warned him that if he did not cease the
disruption he would be put in segregation. Jacoby II, Civ. No.
12-366-CG-C, 2014 WL 2435655, 2014 U.S. Dist. LEXIS 74768 (S.D.
Ala Mar. 18, 2014).
The Court concluded that “given [Jacoby’s]
recalcitrant behavior, the initial use of force, the OC spray,
was reasonable and was used in good faith effort to maintain or
restore
discipline.”
Id.
at
13.
The
Court
also
found
no
constitutional violation with respect to the subsequent use of
the restraint restraint chair given that Jacoby admitted that he
was warned that he would be placed in the chair if he did not
obey orders, and stop yelling and kicking, and aside from some
burning from the spray, he suffered no injury and required no
medical care. Id. at 14. Thus, the Court concluded that Jacoby’s
persistent
hostile
reasonably
justified
behavior
while
Defendants
not
restrained
in
the
chair
releasing
him
sooner
or
releasing him to go to the restroom. Id. at 14-17.
In the case at hand, Jacoby contends that he did not do
anything to cause the officer to spray him. According to Jacoby,
when the officers entered his cell, he was laying on his stomach
in a defenseless position with his arms in the air.
The video
produced in discovery reflects that Jacoby was actually propped
on his knees and that his arms are not visable when officers
24
entered the cell and directed him to get down to the floor.
(Doc. 32-8). The video also shows that after a quick shot of the
pepper spray in the direction of the back of Jacoby’s head, he
is placed on the floor by officers, and his hands are then
handcuffed behind his back.
He is brought to his feet and
immediately led out of the cell to be decontaminated.
is
lead
down
officers
about
sprayed.
door
the
hallway,
why
they
he
came
can
into
be
heard
his
cell
As Jacoby
quarreling
and
why
with
he
was
When he is told that he refused to stop kicking the
when
he
was
directed
repeatedly kicking the door.
to
do
so,
Jacoby
does
not
deny
Instead, he questions whether that
was sufficient to warrant the officers entering his cell, and
spraying him. (Id.)
The video shows that Jacoby is taken to a closet area where
he
lends
over
a
sink,
and
an
officer
uses
a
water
hose
to
thoroughly rinse his face and the back of his head. The officer
then uses several towels to dry Jacoby’s face and the back of
his head.
While Jacoby might contend that the officers should
have given him more time to comply with their directive to get
to the floor, the undersigned will not second guess the actions
of
the
officers
in
maintaining
order
in
the
facility
given
Jacoby’s history of disruptive behavior and physical encounters
25
with the jail staff, his refusal to stop kicking the cell doors
when directed to do so, and the fact that upon entering the
cell, officers directed him to get down, but it does not appear
that he made any effort to do so before the pepper spray was
used 10. See Gardner v. Mack, 2015 U.S. Dist. LEXIS 25395, 2015 WL
877249 (S.D. Ala. Jan. 30, 2015)(“It is arguable [the defendant]
may have been successful in extracting Plaintiff from his cell
without the use of pepper spray, since Plaintiff appeared to be
surrendering to Defendant's will, but a single burst of the
chemical
agent
following
an
inmate's
failure
to
comply
with
orders, combined with his escalating obtrusive behavior, is not
the type of force that shocks the conscious or equates to an
Eighth Amendment violation.”). Under the circumstances of this
case, the undersigned finds that the use of a quick squirt of
pepper spray was reasonable and likely kept the situation from
further escalating.
With respect to the use of the restraint chair, Jacoby
contends that he was in the chair for 8 and one-half hours, that
10
The undersigned notes that a “Use of Force” form was completed
following the use of pepper spray, and after a review of the incident,
it was determined that the use of spray was appropriate under the
circumstances; however, a corporal was reprimanded because she
permitted a subordinate to use the spray when she had been instructed
that she was to personally handle the use of spray if necessary.
(Docs. 32-3, Doc. 32-7).
26
he
was
not
permitted
to
shower,
change
clothes
or
use
the
restroom, and as a result, his eyes, back and lower body were
burning from the spray, and he urinated on himself. The video
shows
that
Jacoby
was
clothed
in
short
pants,
and
that
immediately prior to being placed in the restraint chair, his
face and the back of his head were thoroughly rinsed.
(Doc. 8).
The video also reflects that the restraint chair was located in
an open hallway which makes for easy monitoring, and that Jacoby
continued to be argumentative and made known to officers his
displeasure with the decision to place him in the chair. (Id.)
And, Jacoby acknowledges that he kept crying out for a shower.
(Doc. 39 at 15).
Defendants contend that the restraint chair is never used
for punishment at the jail, but is instead used to ensure the
safety and security of the facility. (Doc. 32-1). According to
Defendants, Jacoby had a history of acting out when he thought
his situation was somehow unfair, or if he wanted attention,
even if it meant harming himself or putting others at risk.
(Doc. 32-3). According to Defendants, inmates such as Jacoby are
kept in the chair until it is determined that they can control
their behavior and no longer present a threat to themselves or
others. (Doc. 32-1).
27
The
undersigned
finds
that
Defendants
did
not
act
unreasonable in utilizing the chair given Jacoby’s history of
physical
confrontations
disruptive behavior.
Jacoby
had
been
with
the
staff,
self
injury
and
As noted, the day before the incident,
placed
in
administrative
segregation
while
officials investigated the tobacco that was found on his pod
area.
Apparently
upset
because
he
felt
he
was
unfairly
implicated in the incident, and placed in segregation, Jacoby
chose to act out by repeatedly kicking the door despite being
directed to stop.
Rather than allow the situation to escalate
with Jacoby, Defendants acted quickly to bring him under control
by placing him in the restraint chair 11 . (Doc. 32-3). Under these
circumstances,
where
Jacoby
suffered
no
injury,
aside
from
slight burning from a quick squirt of pepper spray, and required
no
medical
care,
the
undersigned
finds
that
the
use
of
the
restraint chair to preserve internal order and safety in the
facility was reasonable and thus, did not rise to the excessive
force.
Accordingly, Defendants are entitled to summary judgment
on Plaintiff’s excessive force claim.
11
There is nothing in the record that indicates that Jacoby was
charged with a disciplinary offense as a result of the incident on
January 7, 2013.
Instead, in utilizing the restraint chair, it
appears that officials were attempting to closely monitor Jacoby and
bring him under control.
28
C. Conditions of Confinement
Jacoby claims that the conditions of his confinement in FBlock
at
the
Baldwin
County
facility
are
constitutionally
inadequate. In support of this claim, he describes sleeping “in
a 1 or 2 man cell in the floor with 3 people in it because
segregation was overcrowded” and being “forced to sleep with
urine splattering on him, on his sheets with pubic hairs, body
hairs, and dirt all over him for 3 days because he was forced to
sleep on the floor”. (Doc. 1 at 5). He further claims that he
was “denied outside recreation for 3 days, periodicals to read,
and
the
opportunity
segregation
due
to
to
the
purchase
Baldwin
hygiene
products”
County
facility’s
while
in
policies
regarding inmates in segregation. (Id.). Additionally, he claims
he is a “serious to severe mentally ill inmate and should not be
housed under these extreme conditions” [i.e., segregation]. (Id.
at 6). The undersigned finds that Plaintiff’s claims regarding
the conditions of his confinement are barred by the doctrine of
res judicata as they have been litigated and decided adversely
against Jacoby in Jacoby I, Jacoby II, and Jacoby III, or they
could have been litigated in those actions.
“Res judicata is a judicially crafted doctrine, created to
provide finality and conserve resources.” Maldonado v. United
29
States AG, 664 F.3d 1369, 1375 (llth Cir. 2011); Polk v. Sears
Roebuck & Co., 2012 U.S. Dist. LEXIS 65050 (S.D. Ala. May 8,
2012).
“The
disputes
multiple
by
doctrine
facilities
reducing
the
lawsuits,
foster[ing]
reliance
the
expense
conclusive
and
vexation
conserv[ing]
judicial
on
action
judicial
resolution
by
of
attending
to
resources,
minimizing
and
the
possibility of inconsistent decisions.” Shurick v. Boeing Co.,
623 F. 3d 1114, 1116 (llth Cir. 2010).
Res judicata applies if
all of the following four elements are present: “(1) there is a
final judgment on the merits; (2) the decision was rendered by a
court of competent jurisdiction; (3) the parties, or those in
privy with them, are identical in both suits; and 4) the same
cause of action is involved in both cases.” Maldonado, 664 F. 3d
at 1375 (omitted citations).
If those elements are present,
“[t]he court next determines whether the claim in the new suit
was or could have been raised in the prior action; if the answer
is yes, res judicata applies. . .if even one of these elements
is missing, res judicata is inapplicable.” In Re Piper Aircraft,
244 F. 3d 1289, 1296 (11th Cir. 2001).
As noted supra, this is the fourth lawsuit that Jacoby has
filed against Defendant Mack and various individuals employed by
the Baldwin County jail.
In Jacoby II, Jacoby alleged that
30
while housed in segregation, he was denied visits, television,
books,
space
products,
to
walk
access
documents,
and
exercise,
to
to
access
materials
outside
to
grooming
write
recreation
and
letters
and
only
hygiene
or
legal
allowed
30
minutes of indoor recreation a day, and was housed in a “2-man”
segregation unit with three of four other inmates which forced
him to sleep on the floor beside the toilet where urine would
sometimes
“splatter”
on
his
sheets.
Upon
consideration,
the
Court in Jacoby II held that “[t]aking Plaintiff’s allegations
as true, there [has] not been an “extreme” deprivation of life’s
basic necessities evidenced nor a risk of serious harm”, and
that
“[e]ven
asserted
by
the
less
Plaintiff
unconstitutional.
than
does
Jacoby
II,
not
sanitary
rise
Civ.
No.
sleeping
to
the
arrangement
level
of
12-00366-CG-C,
2435655, 2014 U.S. Dist. LEXIS 74768 (Mar. 18, 2014).
being
2014
WL
See also
Jacoby III 2014 WL 2541834, 2014 U.S. Dist. LEXIS 81477 (S.D.
Ala. Mar. 18, 2014)(Jacoby’s claim that Sheriff Mack created
unconstitutional
policies
that
unnecessarily
deprived
him
of
periodicals, stationary, postage stamps, hygiene products, and
outdoor recreation while housed in the segregation unit “do not
amount to the denial of a basic human need”. . . “nor do they
evidence
a
deliberate
indifference
31
to
a
substantial
risk
of
serious harm to plaintiff’s health or safety.”).
this
action,
Jacoby
is
seeking
to
bring
many
Given that in
of
these
same
issues that were adversely decided against him in Jacoby II, and
Jacoby III, the undersigned finds that res judicata bars him
from relitigating those claims in this action.
While Defendant
Sheriff Mack is the only defendant in this action that was also
named in Jacoby II, and Jacoby III, the undersigned finds that
there is clear privity between the defendants with respect to
Jacoby’s claims regarding the conditions in segregation at the
Baldwin County facility.
Further, as held by the Court in Jacoby III, “Plaintiff’s
claim that Defendants Bryne and Mack breached his constitutional
rights by not having and not placing him in a separate facility
for
seriously-severely
mentally
ill
inmates
could
have
been
raised by Plaintiff in Jacoby I; therefore, that claim is also
barred.” Jacoby III, Civ. No. 12-00640-CG-N, 2014 WL 2641834,
2014
U.S.
Dist.
LEXIS
81477
(S.D.
Ala.
Mar.
18,
2014).
Accordingly, the undersigned finds that Defendants are entitled
to summary judgment on Jacoby’s claims regarding conditions at
the Baldwin County facility because those claims are barred by
res judicata.
D. Due Process
32
Jacoby also raises due process claims based upon the search
of
his
cell
proceedings
on
January
brought
27-29,
against
him
2013
and
the
disciplinary
regarding
the
incident
on
February 4, 2013. He claims that the hearing “was never recorded
for appellate purposes, the disciplinary was not notarized by a
notary as the form states it should be,
there was no hearing
notice date on the paperwork” and that he “never received a copy
of the disciplinary charges in a timely manner”. (Doc. 1 at 10).
According to Jacoby, he did not receive notice of the charges
until two days after the incident, and that he was written up on
a “bogus weapons charge because she [Sgt. Lovett] couldn’t find
nothing else to write Jacoby up for”. (Id.). As a result of this
hearing, Jacoby was put in segregation for thirty days. (Id.).
As an initial matter, the undersigned finds that Jacoby’s
claim that Defendants violated his rights because they do not
allow recording of the disciplinary hearings is subject to the
same ruling as in Jacoby III.
that
Plaintiff
alleged
could
not
inadequacies
in
In Jacoby III, the court held
prevail
on
Defendant’s
that
claim
because
disciplinary
the
hearing
procedures did not give rise to a constitutionally protected
liberty interest.
Jacoby III, Civ. No. 12-00640-CG-N, 2014 WL
2641834, 2014 U.S. Dist. LEXIS 81477 (S.D. Ala. Mar. 18, 2014)
33
With respect to Jacoby’s other claims, the Supreme Court
has specifically held that cell searches implicate neither the
Fourth nor the Fourteenth Amendment, but are “matter[s] lodged
in the sound discretion of the institutional officials.”
v.
Rutherford,
prison
468
disciplinary
U.S.
576,
590-91
proceedings
“are
(1984).
not
part
Block
Additionally,
of
a
criminal
prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply . . .In sum, there must be a
mutual accommodation between institutional needs and objectives
and
the
provisions
of
the
Constitution
that
are
of
general
application.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct.
2963, 2675, 41 L. Ed. 2d 935 (1974).
In recognition of these
principles, the Court has held that a prisoner must receive
notice of the charges against him prior to the hearing; he must
be allowed to call witnesses and present evidence, as long as
this
presentation
security
of
the
does
not
pose
institution,
a
and
threat
there
to
the
must
safety
be
a
and
written
finding. Id.
In
written
this
notice
action,
of
the
it
is
undisputed
charges
against
34
that
him,
Jacoby
and
was
received
able
to
prepare
a
full
defense
12
.
(Doc.
32-1).
The
fact
that
these
notices were not in Jacoby’s preferred form does not amount to a
deprivation
of
due
process.
Moreover,
the
only
consequence
Jacoby suffered because of the disciplinary proceedings against
him
was
transfer
to
disciplinary
segregation
with
an
accompanying loss of privileges.
Disciplinary segregation is not a “dramatic departure” from
the
ordinary
conditions
of
confinement
for
an
inmate,
and
therefore does not in and of themselves trigger specific due
process
procedures
like
those
required
in
a
criminal
trial.
Sandin v. Conner, 515 U.S. 472, 485 (1995), see also Rodgers v.
Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998)(affirming two
months in administrative segregation was not a constitutionally
protected
liberty
interest
requiring
the
protection
of
due
process); cf. Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th
Cir. 1996)(finding that twelve months of solitary confinement
was an atypical hardship of an inmate and created a liberty
interest entitled to due process protection). See Jacoby III,
2014
WL
2435655
segregation
and
at
45
*13
days
(brief
in
sentences
segregation
12
do
of
not
24
days
amount
to
in
a
The written Notice of Disciplinary form reflects that Jacoby
signed the notice and made a notation that he was not provided with a
copy of the form. (Doc. 32-7 at 4).
35
significant hardship and are not a dramatic departure from the
ordinary
existed
conditions
that
would
protection.).
of
confinement;
give
Because
rise
Jacoby
to
thus
no
liberty
constitutional
does
not
have
due
a
interest
process
protectable
interest, he cannot prevail on any due process claim. See, e.g.,
Sandin v. Conner, 515 U.S. at 485-86.
E. Retaliation
Jacoby
disciplinary
alleges
that
proceedings
he
was
because
subjected
Sgt.
to
Lovett
searches
“was
upset
and
over
Jacoby writing Grievances and Lawsuits on her and Filing for
Restraining Orders.” (Doc. 1 at 6). Jacoby has raised this same
issue albeit with respect to other individuals at the Baldwin
County facility, and the court had determined that there was no
evidentiary support for claims of retaliation. Jacoby II, 2014
WL 2435655 at *19, 2014 U.S. Dist. LEXIS 74768.
The same holds
true with respect to the instant petition. As observed in Jacoby
II,
to
succeed
on
a
claim
for
retaliation
under
§
Plaintiff:
“must allege (1) a specific constitutional right,
(2) the defendant’s intent to retaliate against the
prisoner for his or her exercise of that right, (3)
a retaliatory adverse act, and (4) causation.
McDonald v. Steward, 132 F.3d 225, 231 (5th Cir.
1998). The inmate must allege more than his
personal
belief
that
he
is
the
victim
of
retaliation. Johnson v. Rodriguez, 110 F.3d 299,
36
1983,
a
310 (5th Cir.) cert denied, 522 U.S. 995, 118 S. Ct.
599, 139 L. Ed. 2d 400 (1997). Mere conclusory
allegations of retaliation will not be enough to
withstand a proper motion for dismissal of the
claim. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.
1995). The inmate must produce direct evidence of
the motivation or, the more probable scenario,
“allege
a
chronology
of
events
from
which
retaliation
may
plausibly
be
inferred.’
Id.
(citation omitted).”
Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); Jacoby
II, 2014 WL 2434655 at *19, 2014 U.S. Dist. LEXIS 74768. Jacoby
asserts that Sgt. Lovett ordered a “hit” on him which led to him
being sprayed with pepper spray on January 7, 2013, and that she
acted in order to retaliate against him for his many grievances
and lawsuits.
Jacoby
has
Aside from his conclusory allegations however,
not
offered
any
facts
that
suggest,
let
alone
demonstrate, that Defendant Lovett sought to retaliate against
him.
In fact, he has not even identified any specific grievance
or lawsuit that purportedly led Sgt. Lovett to take any type of
retaliatory action. And, he has only made vague allegations of
retaliation on the part of the other Defendants.
Neither
incident
comprising
the
alleged
retaliation
violated any of Jacoby’s rights. Indeed, it seems that Jacoby’s
main argument is that the actions central to this petition were
so
unjustified
that
there
was
37
no
other
reason
besides
retaliation to support them, but this is not evidence sufficient
to prevail on this claim
13
. Therefore, this claim is without
merit, and the Defendants are entitled to summary judgment with
respect to this claim.
e.
Jacoby
evidence
of
Policy and Procedure Claims
alleges
a
that
widespread
the
problems
problem
discussed
with
the
supra
are
policies
and
procedures in place at the Baldwin County jail. (Doc. 1 at 9).
To the extent possible, the court will analyze these claims as
allegations of supervisory liability with regard to Sheriff Mack
and Captain Bennett. On this subject, the Eleventh Circuit held:
[Supervisory] liability under section 1983 must be
based on something more than a theory of respondeat
superior. Supervisory liability occurs either when
the supervisor personally participates in the
alleged constitutional violation or when there is a
causal
connection
between
actions
and
the
supervising official and the alleged constitutional
violation. The causal connection can be established
when a history of widespread abuse puts the
13
Assuming arguendo there was a genuine issue of material fact as
to the retaliatory motives of the Defendants, the second step of the
objective analysis followed by the Eleventh Circuit would still
entitle the Defendants to summary judgment. Under this standard, once
the Plaintiff has met the burden of establishing that a protected
conduct was a motivating factor behind any harm, the burden shifts to
the defendant to show that he would have taken the same action in the
absence of the protected activity. Smith v. Mosley, 532 F.3d 1270,
1278 (11th Cir. 2008 (citations omitted). As discussed at length in
this order, the actions of all Defendants in this case were those of
reasonable officials, and it is reasonable to conclude that they would
have taken the same actions to maintain institutional security without
any allegedly improper motive.
38
responsible supervisor on notice of the need to
correct the alleged deprivation, and he fails to do
so.
Dolihite v. Maughon, 74 F.3d 1027, 1052 (11th Cir. 1996). As
Jacoby
has
cannot
not
established
establish
that
the
violation
Defendants
of
acted
any
rights,
with
he
deliberate
indifference in setting policy and procedures. See, e.g., Cagle
v. Sutherland, 334 F.3d 980, 989 (11th Cir. 2003).
Moreover, in Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009),
the Supreme Court stated:
In a section 1983 suit…where masters do not answer
for the torts of their servants – the term
‘supervisor
liability’
is
a
misnomer.
Absent
vicarious liability, each Government official, his
or her own title notwithstanding, is only liable
for his or her own misconduct.
Id.;
see
also
dissenting)(“Lest
Iqbal,
there
556
by
U.S.
any
at
mistake
693
in
(Souter,
these
words
J.
the
majority is not narrowing the scope of supervisor liability; it
is eliminating Bivens supervisory liability entirely.”).
In
order
to
establish
a
causal
connection
between
the
supervisor’s actions and the alleged constitutional violation, a
plaintiff must show either “a history of widespread abuse [that]
puts the reasonable supervisor on notice of the need to correct
the alleged deprivation” [which is the standard arguably altered
by
Iqbal]
or
an
inference
“that
39
the
subordinates
would
act
unlawfully and failed to stop them from doing so.” Keith v.
DeKalb
Cnty.,
Georgia,
2014)(citations
749
omitted).
F.3d
“The
1034,
(11th
1047-48
deprivations
that
Cir.
constitute
widespread abuse sufficient to notify the supervising official
must be obvious, flagrant, rampant, and of continued duration,
rather
than
isolated
occurrences.”
Id.
(citing
Hartley
v.
Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)).
Jacoby alleges generally that Defendants Mack and Bennett
were “aware of the problems with spray but won’t fix it” (Doc. 1
at 12), but he points to no evidence beyond his own grievances
to support this allegation. Further, the Court takes judicial
notice of the fact that in Jacoby’s three previous lawsuits
filed while housed at the Baldwin County jail, his excessive
force claims were found to be without merit. Additionally, the
record before this Court is devoid of any evidence suggesting
that
Defendants
Mack
or
Bennett
were
aware
of
a
pattern
of
constitutional infirmities in regard to Jacoby’s condition of
confinement at the facility, and there is no allegation that
either
Defendant
incidents.
was
Accordingly,
personally
Defendants
judgment on this claim.
III. CONCLUSION
40
involved
are
in
entitled
the
alleged
to
summary
For the reasons set forth above, the undersigned concludes
that Defendants are entitled to summary judgment in their favor
on all claims asserted against them by Jacoby.
Accordingly,
Defendants’ Motion for Summary Judgment is GRANTED, this action
is DISMISSED with prejudice, and judgment is entered in favor of
Defendants and against Plaintiff Brent Jacoby.
DONE and ORDERED this the 21st day of March 2016.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
41

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.